A former casual employee of Petrotrin has won his lawsuit against the now-defunct company over its refusal to disclose an investigative report into an accident in which he and his colleagues were exposed to hydrogen sulfide gas.
Delivering a 24-page judgment on Monday, High Court judge Ronnie Boodoosingh ruled that the report was not exempt from disclosure under the Freedom of Information Act (FOIA) as it could not fall under legal professional privilege as claimed by Petrotrin.
As a result of his finding, Boodoosingh quashed the decision and ordered that it be disclosed to Gabriel Jacob within 10 days.
Jacob’s lawsuit centred around Petrotrin’s failure to disclose the report and not the injuries he sustained in the incident, which occurred on September 21, 2017. Jacob claimed that he needed the report in order to prepare such a lawsuit.
In his judgment, Boodoosingh noted that Petrotrin’s lack of candour in explaining the circumstances the report was commissioned under, led him to believe that it was not for the purpose it was claiming in the lawsuit.
“I find it highly suspicious the suggestion in the absence of supporting documentation that this report was done for the purpose of legal advice. Sure the purpose of the investigative report must have been done to find out the causes of the incident so that safety measures could be evaluated and remedial measures put forward,” Boodoosingh said.
He also noted that the company should not have been secretive over the report as it was prepared by a workover toolpusher, a health and safety specialist and a union representative.
Despite making the finding, Boodoosingh when on to consider whether the report should have been disclosed in the public’s interest even if it was to be considered to fall under legal professional privilege.
“Notwithstanding the obviously strong weight that legal professional privilege carries in my view there are numerous factors which outweigh this consideration in the circumstances presented here,” Boodoosingh said.
Boodoosingh said the public interest concerns included the fact that Jacob was injured and that the gas leak could have affected neighbouring communities.
Boodoosingh noted that Petrotrin’s closure in November, last year, did not affect Jacob’s claim.
“That cannot affect any right that the claimant may have to information. There must be some continuation of certain responsibilities to deal with matters arising from the operations of the company,” Boodoosingh said, as he noted that an independent investigation would not now be possible based on the current state of the company.
He also suggested that the disclosure of the report may help with public trust and confidence in the State companies which were established to take over some of Petrotrin’s operations after its closure.
“They (the public) may be interested to know that any successor companies could learn from any investigation into an incident like this,” Boodoosingh said.
As part of his judgment, Boodoosingh sought to give advice to other State companies and agencies who receive FOIA requests in the future.
“Public authorities would do well to become familiar with the case law and particularly note that principles of accountability, good governance and transparency lean heavily in favour of disclosure except where there are strong and compelling reasons for not disclosing information,” he said.
Jacob was represented by Anand Ramlogan, SC, Alvin Pariagsingh, Che Dindial and Robert Abdool-Mitchell. Russell Martineau, SC, Amirah Rahaman and Marcelle Ferdinand represented Petrotrin.
